Within the context of professional ethics, observing the principle of confidentiality means keeping information given by or about an individual in the course of a professional relationship secure and secret from others. In Hunter v Mann[1]

Within the context of professional ethics, observing the principle of confidentiality means keeping information given by or about an individual in the course of a professional relationship secure and secret from others. In Hunter v Mann, Boreham J considered the question of whether a doctor owed an obligation of confidence to his patient and concluded that: ‘In common with other professional men…the doctor is under a duty not to disclose [voluntarily], without the consent of his patient, information which he, the doctor, has gained in his professional capacity.’ There is a public interest in health professionals maintaining patient confidentiality - this encourages patients to fully divulge relevant information so that the healthcare professional can make a proper assessment of the patient's condition. On the other hand there may, occasionally, be circumstances where the interest in maintaining confidentiality is outweighed in the public interest.

English courts have retained great flexibility in interpreting the scope of the doctor’s obligation of confidence. The courts balance the public interests favouring confidentiality against those favouring disclosure in the particular circumstances of each case. In X v Y, a Health Authority sought an injunction to prevent a national newspaper publishing the names of two practising doctors who were receiving treatment for AIDS. The Court balanced the public interest in freedom of the press against the public interest in maintaining hospital records confidential. The Court found that lack of publication of the information would be of minimal significance since there was a wide ranging public debate about AIDS generally. In balancing these competing interests it should be noted that disclosure should in any event only be made to a relevant party - there should be no blanket disclosure.

Subsequently the scope of medical confidentiality was considered by the Court of Appeal in W v Egdell. This case arose out of the proposed disclosure to the Home Office of a report about the mental condition of a psychiatric patient in a secure hospital. The Court of Appeal accepted that the obligation of confidence was not absolute. Bingham LJ described the case as establishing:

that the law recognises an important public interest in maintaining professional duties of confidence; but
that the law treats such duties not as absolute but as liable to be overridden where there is ...

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that the law recognises an important public interest in maintaining professional duties of confidence; but
that the law treats such duties not as absolute but as liable to be overridden where there is held to be a stronger public interest in disclosure.

The disclosure in W v Egdell was justified by reference to the public interest in ensuring that a properly informed decision was made by those responsible for considering W’s release in order to avert a ‘real risk of consequent danger to the public.’

This raises the question of what risks of harm might be sufficient to justify disclosure of confidential information in the public interest. It has been suggested that, in order to justify disclosure, the risk of harm must be ‘real’ and not fanciful, and it must be a risk involving the danger of physical harm.

Even if these qualifications are accepted, it is necessary to decide whether or not a doctor will be justified in disclosing information whenever he reasonably believes that such a risk has arisen, or whether he must prove objectively that a real risk of physical harm does in fact exist. Brazier suggests that the test should be based on the reasonableness of the particular doctor’s belief:

‘When the doctor reasonably foresees that nondisclosure poses a real risk of physical harm to a third party he ought to be free to warn that person, especially if that person too is his patient. Courts should not be over-zealous in proving him wrong.’

There are some statutes that require disclosure of confidential information where this would otherwise be a breach of confidentiality. These include:

Police and Criminal Evidence Act 1984: the police can access medical records for the purpose of a criminal investigation by making an application to a circuit judge.
Public Health (Control of Disease) Act 1984 and Public Health (Infectious Diseases) Regulations 1988: A doctor must notify the relevant local authority officer (usually a public health consultant) if he suspects a patient of having a notifiable disease. AIDS and HIV are not notifiable diseases.
Abortion Regulations 1991: A doctor carrying out a termination of pregnancy must notify the relevant Chief Medical Officer including giving the name and address of the woman concerned.
Births and Deaths Registration Act 1953:The doctor or midwife normally has a duty to inform the district medical officer of a birth within six hours. Stillbirths (a baby born dead after 24th week of pregnancy) must be registered. Doctors attending patients during their last illness must sign a death certificate, giving cause of death.
Road Traffic Act 1988: All citizens, including doctors, must provide the police, on request, with information (name, address), which might identify a driver alleged to have committed a traffic offence. This would not normally justify providing clinical information without the patient’s consent, or a court order. A doctor may have a legal obligation to inform the DVLA if he has concerns that a patient has a medical disability that could affect his driving.
NHS (Venereal Diseases) Regulations 1974: Allows limited disclosure of information for contact-tracing in the case of sexually transmitted diseases. Such disclosure can only be made to a doctor, or to someone working on a doctor’s instruction in connection with treatment or prevention.
Human Organ Transplants Act 1989: Doctors who either remove certain organs (kidney, heart, lung, pancreas, liver) for transplant, or who implant such donated organs must report the names and hospital numbers of donor and recipient to the UK Transplant Support Service Authority and the relevant health authority.
Prevention of Terrorism (Temporary Provisions) Act 2000: All citizens, including doctors, must inform police, as soon as possible, of any information that may help to prevent an act of terrorism, or help in apprehending or prosecuting a terrorist.

The Department of Health Code of Practice on confidentiality attempts to put some flesh on the bones of the ‘public interest’ justification by including examples of circumstances when it may outweigh the obligation of confidence. The Code states that NHS staff are permitted to disclose personal information in order to prevent abuse or serious harm and/or prevent and support the detection, investigation and punishment of serious crime. The Code recognises that the definition of serious crime is not clear, but murder, manslaughter, rape, treason, kidnapping and child abuse are all listed as crimes, which may warrant breaching confidentiality. Serious harm to the security of the state or to pubic disorder and crimes that involve substantial financial gain or loss would also generally fall within this category, but theft, fraud or damage to property where loss/damage is less substantial would generally not. Disclosures to prevent serious harm or abuse also warrant breach of confidence and the risk of child abuse or neglect, assault, a traffic accident or the spread of infectious disease are included as perhaps the most common examples that staff may face. Whilst this guidance is reasonably detailed and helpful, it is purely advisory and by no means exhaustive. Overall, the precise circumstances in which a doctor’s obligation of confidence can be overridden in the public interest remain a question for the courts.